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67 U.S.

519
2 Black 519
17 L.Ed. 353

GRIFFING
v.
GIBB.
December Term, 1862

Appeal from the decree of the District Court of the United States for the
Northern District of California.
Frederick Griffing filed his bill in the District Court against Daniel Gibb
and Donald Fraser, averring that he was the owner of two lots in San
Francisco which originally fronted on the natural shore of the bay with
bold deep water in front; that he bought this property with a view to its
water front; that he built ware houses and a wharf on it to which ships of
the largest size could come; that when he commenced his improvements
there was no sign of any streets near him which interfered with his access
to the water, the lines of Filbert and Battery streets being defined only on
the City maps; that the defendants are engaged in filling up a certain part
of the bay in a way which will prevent ships from coming to his warehousethe part to be thus filled up being a lot of one hundred varas
square, covered by navigable tide-water, and situate between, and
forming, the northeast corner of Filbert and Battery streets as defined on
the City map. The plaintiff asserts that these acts of the defendants are in
violation of his rights, injurious to the public, and contrary to the
Constitution and Laws of the United States and of the State of California,
and therefore prays for a perpetual injunction.
To this bill the defendants demur; the Court sustained the demurrer, and
the plaintiff having failed to amend the bill within the time limited by the
rule of Court, a final decree was passed, dismissing the bill. Thereupon the
plaintiff took an appeal to this Court.
Mr. Hepburn and Mr. Wilkins, of California, for the appellant, insisted
that the bill was erroneously dismissed. The plaintiff, on the facts averred
in the bill and admitted in the demurrer, was entitled to relief. He could
only be defeated by proof, that Battery and Filbert streets were legally

extended by the proper authorities. The bill avers that they were not
legally or officially laid out. The right of the defendants to do the thing
complained of, so far from being admitted in the bill, is expressly averred
to be wrongful.
Mr. Latham, of California, and Mr. Black, of Pennsylvania, for the
appellee, maintained the correctness of the decree on the grounds: that,
1. The bill indicates distinctly the locus in quo of the acts complained of
as being on a lot between certain streets defined on the City map.
2. This Court, as well as the District Court, is bound to notice, judicially,
the public laws of a State and the acts of public corporations done in
pursuance of them.
3. The laws of California and the acts of the City Government are here
produced, and show that the place, which the defendants are filling up, is
a part of the City covered by lots and streets, and not public waters of the
bay.
4. The laws of California which relate to this subject are not
unconstitutional.
5. The averment that the act of the defendants was wrongful is not to be
taken as admitted by the demurrer. The demurrer admits the facts set forth
in the bill, but not the legal conclusions.
Mr. Justice WAYNE.

This is an appeal from a decree of the Circuit Court of the United States for the
Northern District of California.

The complainant seeks to obtain a perpetual injunction to restrain the


defendants from piling and improving a lot of land claimed by them, which is
said in the bill to be within the inside of the water front line of the city of San
Francisco, and always covered by the tidewaters of the bay. He states that he is
the owner in fee simple, and is in possession of two parcels of land; the first
beginning at a point where the east line of Sanson street intersects the south
line of Filbert street, running thence south-wardly along the east line of Sanson
street 137 feet; thence east, at right angles to Sanson street, 275 feet; thence
north, parallel with Sanson street, 137 1/2 feet, to a point in range with the
south line of Filbert street; thence west 275 feet to the point of beginning. The

second, 'A lot beginning at a point where the east line of Sanson street
intersects the northern line of Filbert street; thence north along the east line of
Sanson street 137 1/2 feet; thence at right angles to Sanson street 275 feet;
thence south, parallel with Sanson street, 137 1/2 feet, to a point in range with
the north line of Filbert street; thence 275 feet to the place of beginning.'
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The complainant asserts that he is in the exclusive occupation and possession of


both lots of land under a title in fee; that he has buildings and improvements
upon them of the value of $200,000. He further avers that his lots originally
fronted on and were a part of the natural shore of the bay of San Francisco; that
they had a deep and high bank in the rear, with a bold and deep water in front,
where the tide ebbed and flowed, where ships of the largest class navigated in
safety to receive and discharge cargo. Passing over other allegations in the bill
not necessary to be mentioned in this connection, the complainant asserts that
he commenced to make his improvements in the year 1851, and that he had
used and enjoyed them for the purposes for which they had been constructed,
until interfered with by the defendants, having piles driven in front of his
premises, under the navigable waters of the bay, extending over a space of 275
feet square. That the defendants assert, notwithstanding his remonstrances
against such piling, that they have a right to drive them, and declare it to be
their intention to build a wharf upon a lot which they claim, situate as follows:
Beginning at the northeast corner formed by the extended lines of Filbert and
Battery streets, being a lot of land covered by the navigable tide of the bay of
San Francisco, &c., &c., where ships of the largest class habitually pass and
repass in their approaches to the complainant's warehouses. It is then averred
that if the piling shall be done at that point that it will interfere with the public
use of the harbor and the bay, obstruct the navigation, divert the tide from its
usual flow and ebb, change its current, and shallow the water by deposits of
sediment, as it has already done, there being shallower water at the point
designated than there had been before the defendants wrongfully began to pile
there, and particularly so in front of the complainant's premises, than there had
been when he began to improve his premises in the year 1851; that the depth of
the water there is being constantly lessened by said piling, greatly to the
complainant's pecuniary loss, and will be to his irreparable injury unless the
defendants shall be restrained from continuing their unlawful acts by an
injunction, and by a decree of the Court for the abatement of the defendants'
piling as a nuisance. That the piling which has been done by the defendants is
contiguous to his premises; that it is on a lot covered by the ebb and flow of the
tide of the bay of San Francisco, and that the defendants claim the lot to be
within the City of San Francisco.

The defendants filed a general demurrer to the bill. We think that the Court

erred in sustaining it, and in dismissing the bill of the complainant for want of
an amendment, which the Court directed to be made by the next rule day. On
the demurrer the ruling of the Court should have been for the complainant,
instead of which the Court dismissed his bill. The only point, in our view of the
case, when it was on its hearing in the Court below, was, whether the
complainant had not shown, by the facts stated on the face of his bill, artificial
as it may be in point of form, a case for relief within the jurisdiction of a Court
of Equity. We think it to be so, and shall remand it to the Court below for
amendment and further procedure, as in the judgment of that Court, the case
may require.
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We further observe that the filing of a general demurrer was not in the
pleadings, and facts of the case a proper defence. The defendants might have
resorted to a plea alleging matter, which, if appearing on the face of the bill,
would have been a good cause of demurrer, or the bill should have been
answered. The demurrer filed was a denial in form and substance of the right of
complainant to have his case considered in a Court of Equity, but an admission
that all all the allegations of it which were properly pleaded were true. In
respect to what was said in the argument that this Court would, on the general
demurrer of the defendants, judicially notice the Acts of California relating to
the harbor of San Francisco, and particularly of the Water Lot Act of the 26th
March, 1851, we will only remark that we should do so if the pleading in the
case was such as permitted it to be done, and if we did not think, as we have
already said, that upon that plea that the cause should not have been dismissed,
and that the Courts should have ruled in favor of the complainant; and it is now
here ordered, adjudged and decreed by this Court, that the decree of the said
Circuit Court in this cause be, and the same is hereby reversed, each party
paying his own costs on this appeal in this Court, and that this cause be, and the
same is hereby remanded to the said Circuit Court for further proceedings to be
had therein, in conformity to the opinion of this Court.

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